2017 Supreme(Mad) 494
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, J.
Jothi Arumugam – Petitioner
Versus
P. Natarajan – Respondent
CRP (PD) No. 1124 of 2017 and CMP No. 5403 of 2017
Decided On : 03-04-2017
For the Petitioner: Mr. N. Manokaran.
For the Respondent: Mr. S. Kaithamalai Kumaran.
The main legal point established is the court's authority to appoint an Advocate Commissioner for a specific survey number alone and the requirement for expeditious disposal of the main suit.
Headnote:
ADVOCATE COMMISSIONER - CIVIL PROCEDURE CODE - The court set aside the trial court's order and directed the appointment of an Advocate Commissioner to visit the suit property, measure the property, fix the boundary line, and file a detailed report with a plan for a specific survey number alone, based on the plea of oral exchange.
Fact of the Case:
The plaintiff filed a suit for declaration of title and consequential injunction based on the plea of oral exchange. During the trial, the plaintiff filed an application under Order XXVI Rule 9 CPC, 1908, seeking the appointment of an Advocate Commissioner to visit the suit property and measure the disputed property.
Finding of the Court:
The court set aside the trial court's order, directing the appointment of an Advocate Commissioner for a specific survey number alone, as it was not the subject matter of a previous similar application in another suit. The court also directed the trial court to dispose of the main suit within three months from the date of filing of the report and plan by the Advocate Commissioner.
Issues: The issues involved the appointment of an Advocate Commissioner, the restriction of the report to a specific survey number, and the expeditious disposal of the main suit.
Ratio Decidendi: The court held that the appointment of an Advocate Commissioner for a specific survey number alone was justified, as it was not the subject matter of a previous similar application in another suit. The court also emphasized the need for expeditious disposal of the main suit.
Final Decision: The court set aside the trial court's order, directed the appointment of an Advocate Commissioner for a specific survey number alone, and instructed the trial court to dispose of the main suit within three months from the date of filing of the report and plan by the Advocate Commissioner.
1. Plaintiff in the trial court is the revision petitioner before me. The suit has been filed in the trial court with prayers for declaration of title, consequential injunction and the plaint prayer is predicated primarily on the plea of oral exchange.
2. In the course of the trial of the suit, an application being I.A. No. 53/2017 was taken out by the plaintiff under Order XXVI Rule 9 CPC, 1908 (hereinafter referred to as CPC for the sake of brevity), praying for appointment of an Advocate Commissioner.
3. The prayer in the said I.A. is for appointment of an Advocate Commissioner to visit the suit property along with the competent Surveyor measure the suit property in dispute fix the boundary line and file a detailed report with plan.
4. In this prayer 7 survey Nos. have been cited and they are as follows:-
1.
R.S. No. 266/1B
2.
R.S. No. 266/2
3.
R.S. No. 266/3
4.
R.S. No. 266/4
5.
R.S. No. 266/5
6.
R.S. No. 266/10A
7.
R.S. No. 266/10B
5. The learned Trial Judge, after full contest in the Interlocutory Application for appointment of an Advocate Commissioner dismissed the same vide order dated 20.02.2017 primarily on the ground that in another suit being O.S. No. 306/2012, similar application vide I.A. No. 81/2016 was taken out, the same was dismissed carried in revision to this court by way of CRP No. 1121/2016 that was also withdrawn and given quietus.
6. In the course of hearing, the proceedings pertaining to the above said CRP No. 1121/2016 and the above said IA out of which the same arises were placed before this court.
7. It is seen that those proceedings pertain to 5 Survey Nos. viz. R.S. Nos. 266/1B, 266/4 , 266/6, 266/10A, 266/10B.
8. Faced with this situation, Mr. N. Manokaran learned counsel for the revision petitioner would submit that in the instant suit, the Advocate Commissioner application can be restricted to R.S. No. 266/3 alone and not the other R.S. Nos.
9. As R.S. No. 266/3 is not subject matter of the earlier Advocate Commissioner application in the earlier suit viz. Interlocutory Application in O.S. No. 306/2012, I am inclined to set aside the order of the trial court, which is being sought to be revised before me.
10. While setting aside the order, it is made clear that the Advocate Commissioner, who shall now be appointed shall be given directions to visit the suit property along with a competent surveyor to measure the suit property with the aid of revenue records to fix the boundary line and file a detailed report along with plan with regard to R.S. No. 266/3 alone and not the other R.S. Nos.
11. Some more submissions were made with regard to the admission of 2nd defendant, who deposed as DW-2 wherein the 2nd defendant in cross examination has stated that he has no objection for such a course being i.e. an Advocate Commissioner being appointed.
12. In the light of the fact that the Civil Revision Petition is being disposed of, on a short point, I refrain from going into that aspect of the matter.
13. Civil Revision Petition is disposed of with the following directions:
(a) Order dated 20.02.2017 made in I.A. No. 53/2017 in O.S. No. 35/2015 on the file of the learned Principal District Munsif Court, Erode, is set aside.
(b) The trial court shall appoint an Advocate Commissioner with a suitable direction as stated supra in this order with regard to R.S. No. 266/3 admeasuring an extent of 13½ cents. It is R.S. No. 266/3 in Vilakkethi village, in Sivagiri Sub-Registrar Office, Erode District. In other words, the suit property as found in the plaint in O.S. No. 35/2015.
(c) The Advocate Commissioner so appointed shall be directed to restrict his report to R.S. No. 266/3 alone as aforesaid.
14. Both the learned counsel, by consent state that they will be able to have the main suit itself disposed off within three months from the date of filing of report and plan by the Advocate C